Divining capacity

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

After two court hearings, a judgment was reached concerning QJ, an 87 year old man in a nursing home who was starving himself to death. Mr J had vascular dementia, but had made a clear decision towards the end of 2019 not to eat again. Understandably, the court was being asked whether he had capacity to make this decision. Following the commencement of his fast, QJ had decided he wanted no treatment apart from palliative care.

The General Practitioner thought that QJ had capacity; that he did not want to take food and that it was ‘entirely wrong’ to force-feed him. He believed that QJ ‘should just be allowed to die as he seems to wish’.

During subsequent conversations it became clear that despite having taken no food at all for 5 weeks, Mr J was asserting that ‘…if I like what is put in front of me I’ll eat it’. When asked if he would like to be put on an intravenous infusion for nourishment, he nodded. The diametric contrast between QJ’s actions and his new indications took all involved by surprise, leading the judge to order a further hearing with expert evidence.

Dr A, a consultant in old age psychiatry, told the new hearing that QJ had capacity for decisions relating to nutrition, hydration and medical treatment. For these matters Mr J could understand, retain, weigh and communicate his views. Dr A noted that QJ used shrugs and nods or shakes of his head to communicate, apparently abstaining from speech because his voice was dry and croaky, due to taking little or nothing by mouth. By contrast, Dr A thought that QJ lacked capacity for residential decision-making, extrapolating from his minimisation of the effect of his frailty on his ability to care for himsel,; thus deducing that QJ was unable to weigh the risks and benefits of either caring for himself, or being cared for by others.

Dr B, QJ’s consultant physician, agreed that he could understand questions about why he was in hospital or whether he was hungry, although on the somewhat restricted basis that he felt QJ’s blank face or shaking head were indicative of understanding. Similarly, he concluded from QJ’s ‘blank stare’ that he could understand an explanation as to the consequences of refusing food; and with a shrug of his shoulders and a shake of his head confirm his refusal of a nasogastric tube.

Notwithstanding these astute deductions, Dr B concluded during the use of a ‘recall question’ that QJ could neither remember, weigh, appreciate situational gravity nor understand consequences. For this reason, he rejected the notion that QJ had capacity.

Interpreting the evidence before him with enigmatic grace, the judge found that there was ‘...a good deal of evidence which suggests that QJ was making a capacitous choice to die’. Acknowledging that the evaluation of QJ’s capacity was ‘delicately balanced’, the judge was unable to conclude that the presumption of capacity had been rebutted. Accordingly, a treatment plan including no readmission to hospital in the event that QJ refused food or water, continuing discussions with him in relation to his wishes and the daily offer of 750-1000 calories orally was endorsed by the court.

The external observer might speculate that this outcome was more conveniently achieved thanks to the court’s finding of QJ’s capacity, but it would be hard to deny that this was the right result for him.

Robert Wheeler
Department of clinical law
April 2020